Summary Judgment Reversed Against Gasket Defendant Despite Contradictory Declaration Court of Appeal of California, First Appellate District, Division Two, December 22, 2017
CALIFORNIA — The plaintiffs filed suit against dozens of defendants, including Familian Corporation, alleging that Mr. Turley developed an asbestos related disease for which defendants were liable. Specifically, Mr. Turley alleged that he was exposed to asbestos containing cement pipe, pipe collars, gaskets and elbows made by Familian while working at various Pacific Gas and Electric Company locations.
Familian moved for summary judgment. The plaintiffs filed an opposition with a declaration from a witness, Paul Scott, who had not been deposed. The declaration implicated Familian as a product to which Mr. Turley had been exposed. The declaration, along with other discovery matters, became the subject of alleged “sharp” discovery practices lodged by both sides. For purposes of summary judgment, the court noted that the discovery issues were not germane to its decision. Mr. Scott was subsequently deposed. His deposition testimony veered off course from his declaration according to Familian. The trial court agreed and granted summary judgment in favor of Familian. The plaintiffs appealed.
The court began its analysis and stated that the exposure standard requires that the “plaintiff must first establish some threshold exposure to the defendants’ defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ”legal cause” of his injury, i.e., a substantial factor in bringing about the injury.” Familian argued that the plaintiffs’ discovery responses were lacking with regard to the exposure issue. However, the court concluded that Familian had not included in its argument that the responses did not state that any exposure that may have occurred had not contributed to Mr. Turley’s injury. Further, the court discussed the decision from the Lineweaver case as comparative to the instant appeal. Like Lineweaver, circumstantial evidence rather than direct exposure evidence was put forth. Here, Mr. Scott’s testimony established that Familian’s asbestos gaskets were “frequently used at Mr. Turley’s worksite throughout the five years that Mr. Scott was the person ordering, procuring and distributing such products to the sites and that Mr. Turley used them.” As for the declaration submitted below, the court noted that the trial court relied upon the D’Amico decision whereby a subsequent contradictory declaration may render the grant of summary judgment. However, the court stated that the plaintiffs correctly argued that the reverse had occurred. Here, the declaration was submitted prior to the deposition testimony. The plaintiffs argued this position below. According to the court, Familian had not responded to this argument. In conclusion, the trial court’s application of the D’Amico decision was in error. Finally, the court concluded that Mr. Scott’s testimony was not contradictory with his declaration in several areas. His testimony established that “defendant’s product was definitely at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it.” Accordingly, summary judgment was reversed.